8 October 2010

Scottish Double Jeopardy Bill published...

Yesterday, the Scottish Government introduced their promised Double Jeopardy (Scotland) Bill to rejig the Scots law on tholing your assize and introduce new exceptions to the old strictures on re-prosecution in the event of an acquittal. The document is technical and it'll take some time to pick through the implications and what is and what is not encompassed within its terms.

It has provisions on acquittals "tainted" by interference with judge and jury, post-acquittal confessions and best-publicised, section 4 would introduce a "new evidence" exception. For all of the above, the Lord Advocate would first have to apply to and convince the High Court of Justiciary that the acquittal be set aside. Where new evidence is the grounds on which a new trial is sought, it is envisaged that Law Officers will have to satisfy a number of tests. Firstly, they will have to demonstrate that "the case against the accused is strengthened substantially by the new evidence" (§4(6)(a)). Secondly, the new evidence couldn't have been available - "and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence" (§4(6)(b)). Thirdly, the Court is also asked to assess, given the evidence lead at the first trial and the new evidence, whether "it is highly likely that a reasonable jury properly instructed would have convicted the person" (§4(6)(c)). Fourthly, the Court is invited to assess whether "it is in the interests of justice" to vacate the acquittal (§4(6)(d)). I must say, I find the distinction between a "substantially strengthened case" and inducing judges to guess what the jury would have done is rather strange. Here, it is also worth pointing out that the World's End Murder case - so often invoked in this context - is exceedingly unlikely to be retried under the auspices of the proposed law. As was pointed out exceedingly perceptively here, it wasn't any rule on tholing your assize that stuffed the prosecution of Angus Sinclair. Nor is a "double jeopardy" reform the solution to that problem.

Moreover, to these tests we must add another limitation - new evidence will only allow certain offences to be re-prosecuted. I've blogged on this question before, speculating that we might see the inclusion of the new serious organised crime offences on the list. They're a no show. I thought it might be interesting, by way of preliminary contrast, to compare the Scottish and English lists. In England, offences qualifying for the new-evidence exception to the double jeopardy rule are:

Offences Against the Person
Murder; Attempted murder; Soliciting murder; Manslaughter; Corporate manslaughter; Kidnapping
Sexual Offences
Rape; Attempted rape; Intercourse with a girl under thirteen; Incest by a man with a girl under thirteen; Assault by penetration; Causing a person to engage in sexual activity without consent; Rape of a child under thirteen; Attempted rape of a child under thirteen; Assault of a child under thirteen by penetration; Causing a child under thirteen to engage in sexual activity; Sexual activity with a person with a mental disorder impeding choice; Causing a person with a mental disorder impeding choice to engage in sexual activity

Drugs Offences
Unlawful importation of Class A drug; Unlawful exportation of Class A drug;Fraudulent evasion in respect of Class A drug; Producing or being concerned in production of Class A drug
Criminal Damage Offences
Arson endangering life; Causing explosion likely to endanger life or property; Intent or conspiracy to cause explosion likely to endanger life or property

War Crimes and Terrorism
Genocide, crimes against humanity and war crimes; Grave breaches of the Geneva Convention; Directing terrorist organisation; Hostage-taking

Conspiracy
Conspiracy

For Scotland, MacAskill proposes the following offences be re-triable under the new evidence exception. The legislation includes a ministerial power to add and delete articles from this list. It may also be amended as the Bill passes through the parliament. However, at stage 1, freshly baked by the Scottish Government justice wing, the list reads:

Offences against the person
Murder; Culpable homicide

Genocide etc.
Genocide (s1 of the International Criminal Court (Scotland) Act 2001); A crime against humanity (ibid); A war crime (ibid).

Sexual offences: common law
Rape; clandestine injury to women; abduction of a woman with intent to rape; assault with intent to rape or ravish; indecent assault; Lewd, indecent or libidinous practice or behaviour; Sodomy.

Sexual offences: offences under the Sexual Offences (Scotland) Act 2009
Rape; Sexual assault by penetration; Sexual assault; Rape of a young child; Sexual assault on a young child by penetration; Sexual assault on a young child; Causing a young child to participate in a sexual activity.

Other sexual offences
Incest; Sexual intercourse with a stepchild; Unlawful sexual intercourse with a girl under 13

No need to hop on your mule of despairing reaction just yet, Subrosa. The Scots criminal law is much less neat and ordered than most folk suppose. Offences have historically applied only to one gender, some offences come from an isolated section of statute - often overlapping with Common Law offences which criminalised the conduct anyway. The reason why the Bill contains an apparently eccentric range of charges is the proposed retrospectiveness of the legislation. Some of these charges don't apply any more - but theoretically, someone in the past could have been acquitted on one such charge. To pick one example, the Appeal Court basically interpreted the offence of "clandestine injury to women" into oblivion, when they redefined what constituted rape.

Forgive me for the bluntness here, but historically clandestine injury involved having sex with a sleeping woman. Proposed retrospectiveness is why these offences are mentioned.

Indeed the Scots common law of consent was never that it was thirteen: but until not really all that long ago it was 12 for girls and 14 for boys. Which is just as well as it kept my 17-year-old great-great-grandfather from being prosecuted for begetting my great-grandfather on my 14-year-old great-great-grandmother. And in that it may well be that Scots common law took a much more grimly realistic view of the human condition than subsequent Parliamentary interference - not least that of the Subrosa's fellow citizens and citizenesses...

James Chalmers of the University of Edinburgh had a piece in the Scotsman recently which emphasises precisely that point in a discussion of the most recent parliamentary reforms to sexual offences. It also raises an interesting spectre, rather surprising for those who tend to emphasise "tradition" to justify legal attempts to regulate juvenile sexuality. In fact, the history of such laws - although complex - is in the main much more modern than many folk suppose.

Thank you for the link, LPW. Indeed the law on sexual offences is a terrible minefield. Mainly this is the fault of ignorant parliamentarians poking their noses into legal matters, which is a much wider matter - we wouldn't let 650 (or even 129)rank amateurs carry out a brain operation, or design a bridge, so God knows why we let them write laws. But not exclusively: assault is a common law offence but we have defined it in such a way that it's still a crime to hit a masochist who is begging you to do precisely that. Not that I have any personal experience of these matters. But in general the proposed double jeopardy law is a Bad Thing. If Governments have lacked evidence, they have never been blate about creating it. And if a Labour Government could invent the evidence which took us to war with a whole nation, Mr Sinclair ought to be very concerned about next May's results...

Interestingly enough, I've heard rumours that elements of the Scottish Labour Shadow Cabinet may not be so firmly behind Kenny MacAskill's Double Jeopardy (Scotland) Bill as one might have supposed from the public pronouncements of Iain Gray and Richard Baker...

The confusion you allude to is often aided by an interesting tendency - to create new offences but decide not to repeal the often older Common Law equivalents. That adds a certain bemusing spice to sentences that begin with often unmerited confidence "The law is..."

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